Recap of Ersessene Kunst—Der Fall Gurlitt (Appropriated Art—The Gurlitt Case): January 26, 2014 in Heidelberg

Art Law Report 28 January 2014
By Nicholas O'Donnell

I’ve just returned from my presentation in Heidelberg at the Hochschule für Jüdische Studien in Heidelberg at the conference Ersessene Kunst—Der Fall Gurlitt; Appropriated Art—The Gurlitt Case.  The presentations were, without exception, outstanding.  They ranged from rarely-told case stories, to sharp insights of some of the overarching principles that guide the the Gurlitt case and similar events.  As the discussions made clear, this case will not be easily resolved.  That in turn makes recent reports that Cornelius Gurlitt has indicated a willingess to discuss the art’s return all the more significant. 

The presentations may be published in whole or in part this spring, stay tuned.  I thank the organizers for including me, and the participants for their comprehensive and fascinating presentations.

Johannes Heil, Hochschule für Jüdische Studien Heidelberg, was the organizer and opened the session.  He introduced and moderated the first panel.

Jim Tobias of the Nürnberger Institut led off the day reviewing the history of the so-called “Stürmer Bibliothek.”  Julius Streicher was an early Nazi ideologue, and publisher of the Nazi propaganda Magazine Der Stürmer, in which numerous Nazi tropes about Jews, Socialists, and other persecuted groups were spread.  Streicher, grueseomely enough, also collected devotional books that fleeing Jews left behind throughout Germany and occupied territories.  So it was, that at the end of the war, Streicher’s home was a uniquely large collection of these books.  The U.S. Army seized the books.

Thus the question arose of what to do with these objects, so many of which belonged to murdered Jews or those who had left and had no intention of returning.  The Committee for Jewish Affairs in the U.S- occupied zone made the first plea for the books to be sent to Palestine, and later Israel.  In June, 1950, many were sent to Yeshiva University in New York, which filled some 82 crates.  As Yeshiva’s then-President Jakob Dienstag said, Streicher would have spun in his grave had he known that the books had enriched a center of Jewish study as they did. 

Most stayed behind, though. In 2000, the city of Nuremberg started to catalogue and analyze the remaining collection on the 900th anniversary of the city.  Many have been returned to private owners and Jewish libraries.

Tobias’s outstanding presentation spotlighted two latent issues in restitution cases: the difficulties when there are no heirs actively to seek return of stolen property, and the practical cahllenge of numerous objects that are not economically significant.  If the books should be returned to the Jewish community, should it be that of Israel, or emigrés in the United States?  And although the cultural and scholarly value of such a collection of books, reflecting centuries and dozens of countries of study and worship is priceless, one rarely sees restitution litigation over a handful of books.  Tobias’s talk thus rased a very important issue that is clearly not covered enough.

Annette Weber, one of the organizers, then gave an overview of the many connections that Hildebrand Gurlitt had to leading museum and art historical figures who were involved in both the plunder of art from Jews as well as the “degenerate art” appropriation from German museums—much of which, it must be said, had been sold under duress between 1933 and 1935 by Jews looking to get out.  Weber used as an example a Chagall gouache in the Gurlitt find that had belonged to the Blumstein family in Riga, that had been shown by Alfred Flechtheim. 

Hildebrand had connections with Leopold Reidemester, who was involved in the removal of art by the SS from Florence.  Reidemeister later became director of the Wallraf-Richartz Museum in Cologne and museums in Berlin after the war, despite all this.  Otto Förster was a follower of Reidemeister, and may have put in a good word to help Hildebrand get his collections back after they were taken from Aschbach Castle.  Gert Adriani was a friend of the infamous Kajetan Mühlmann, who among other activities was the Gauleiter of Vienna.  He was also involved in the removal of art from Monte Cassino by the German Army after the fall of Mussolini’s government.  Werner Haftmann met Reidemeister in Hamburg in 1942. Hildebrand met Förster, Adriani, and Cornelius Müller Hofstede, who himself led the plunder of Jewish collections in Breslau in Silesia (now Wroclaw, Poland).

Anat Feinberg then gave a stirring explication of the story of the Aryanization of the Old Theater in Stuttgart (the “Altes Schauspielhaus”).  Claudius Krausharr bought the theater in the early 20th century.  He reorganized the business, and made capital investments to improve the property.  By the early 1930s, the theater was successful and profitable.  It included many of the leading actors of the German stage, and also one who would later star in the infamous Jud Süss film  the theater was placed on hold after the Nazi ascension to power, and it was descrated with anti-Semitic graffiti.  He was compelled to transfer the theater in 1934 in an agreement, in which he was paid 4,000 Reichsmark and the state of Württemberg received the sale rights.  He tried to sell the theater himself, but it was not permitted. 

After the war, the family went back and forth over the seizure.  A power of attorney, and the agreement, were held against them as evidence of a free-willed sale.  Eventually they obtained it, and his son sold it to the city of Stuttgart in 1962 for 3.9 million Deutschmarks.  The press coverage that accompanied the sale made no mention of his Jewishness, or of the Nazi seizure.

Katje Terlau, an independent art historian in Cologne, was unable to attend, but her paper was read.  She discussed Gurlitt and his working circle in Cologne.  Hildebrandt Gurlitt was one of the largest dealers in occupied France, not only with „degenerate art“ but also with stolen art.  Hildebrand had one Jewish grandmother, which made him a “Mischling Second Degree” under the Nuremberg Race Laws.  Gurlitt’s family in Dresden was well known and highly cultivated in music and art.  He was director of the museum in Zwickau, and then the Kunstverein in Hamburg.  Although never a Party member, he was appointed an authorized “degenerate art” dealer in 1937.  After the occupation of France, he became highly active there.  A 1941 letter from the German embassy directs any and all German occupying personnel to give Hildebrand their full cooperation.  As a result, he was able to travel unhindered. 

After the 1943 bombing of Hamburg, Hildebrand returned to his family home in Dresden.  He stored some of his art in his basement, and some in external repositories (as did many museums late in the war).  He was then a good friend of Hermann Voss, leader of the Führermuseum project for Linz. 

After the war (and the shipment of his collection to Oberfranken), he claimed to the Art Loss Recovery Unit that he was never aware that any works had been stolen.  S. Lane Faison, Williams College and Monuments Man, in his Interrogation Report Number 4 (NB, Faison also interrogated Voss), concludes that Hildebrand Gurlitt’s importance as an agent for the Nazi government were probably exaggerated.  

As has been covered extensively, Gurlitt claimed after the war that his collection was destroyed in the firebombing of Dresden.  His collection, and that of Karl Haberstock, were sent to Aschbach Castle. After the war, he avoided the De-Nazification process by citing his disfavored racial status, and he became director of the Kunstverein in Düsseldorf, where there is a street named after him.  He died in 1956 in a car accident, leaving his wife as sole heir. 

Henry Keazor, Kunsthistorisches Institut, Universität Heidelberg, gave a brief introduction to what he called “Sense and Sensibility” of the restitution debate.  He reviewed the use of art as propaganda, and the debate over the art that was approved of and used for such purposes after the war.  This opened the discussion for the remainder of the day into the balance between legitmacy and legality, and morality and legal compulsion. 

Next, Nicholas M. O’Donnell (me) of Sullivan & Worcester LLP discussed the history of restitution disputes in the United States.  Private claims have faltered so often on statutes of limitations, even though good faith purchase cannot convey good title.  Nearly every claim between private parties has failed for this reason.  Altmann v. Republic of Austria has certainly opened the doors to federal jurisdiction against European state museums, but the results have been mixed since.  In 2013, however, it seemed that the tide may have turned again. 

Wolfgang Ernst, Lehrstuhl für Römisches Recht und Privatrecht, Universität Zürich, then gave a thorough and clear overview of many of the German legal and procedural aspects of a case like Gurlitt.  Considering the courts of Munich as the likeliest locus of proceedings, he reviewed the many things that a court could do.  As Professor Ernst noted, it is not a court’s job to determine historical truth.  He made three observations about the laws that judges confront in resitution.

The first is that every new case presents novel questions of fact and law.  Just because another “Flechtheim” case comes up, does not mean it will overlap with the rules of decision that governed another, similar case.  Ernst did not mention in, but the Altmann collection itself is a good example: witness the contrast between her succesful claims for Portrait of Adele Bloch-Bauer and her unsucessful attempt to win back the Portrait of Amalie Zuckerkandl.  It is an uphill battle, not just in the United States.  The defense has it easier, it doesn’t have to prove that it had a right to the painting, the plaintiff has to prove the opposite. 

Second, under German law, the likelihood that the current possessor has acquired title by prescription, no matter what the original circumstances.  Third, the application of statutes of limitations, which will generally run after thirty years. 

Reviewing all this, as Professor Ernst said, having rights, and achieving right are different things. In light of the difficulty of civil law, what about the criminal law?  It is not clear that Cornelius Gurlitt committed any crimes. So, he posed, perhaps the aspects of criminal law for the protection of victims is the key.  In this sense, perhaps the art itself is properly viewed as the mechanism through which to protect those victims.  It was certainly an intriguing and creative suggestion.

The last panel of presentations focused on the media aspects of the Gurlitt case.  Corinna Budras of the Frankfurter Algemeine Zeitung gave a history of the public disclosures in the case.  Hildebrand Gurlitt was returning from Switzerland on September 22, 2010 when his 9,000 Euros in case triggered ths suspicion of customs authorities.  As a result of that investigation, on February 28, 2012 his apartment was searched for three days. It’s now known that art historian Meike Hoffmann was consulted to review the collection, a task that was obviously formiddable.  The Focus article broke the story on November 2, 2013.

The reasons given by the authorities for the long silence focus primarily on the nature of the investigation: a tax inquiry.  Such inquiries in most European countries are strictly confidential, sometimes with criminal penalties associated for any violations.  It certainly begs the question of how Focus came to know of the seizure. 

Emily Löffler, Seminar für Neuere Geschichte, Eberhard Karls-Universität Tübingen, gave her observations on the themes that have dominated the coverage of this and other restitution events.  She noted that articles repeatedly, since early after the war, tend to focus on Nazi grandees like Göring and Hitler.  This has been true in Germany, France, and the United States.  Here, the discovery followed similar patterns.  The “deposit” coverage tracked the finding of salt mines full of art after the war, including a fixation on the condition of Gurlitt’s apartment. 

Irina Alter, Slavisches Institut, Otto Friedrich-Universität Bamberg, concluded the presentations by considering the importance of the case for Russia. Notably, (like the „maybe Whitey Bulger knows who robbed the Isabella Stewart Gardner“ theme), it was quickly speculated that perhaps Gurlitt evenheld some clue to the fate of the Amber Room. 

Alter noted that the Soviet Union had similar experience with state approved and seized art.  In the late 1920s, as the economy was in collapse, the Soviet Union sold some 2,880 works from the Hermitage for cash.  The auctions were held in Germany, and were quite controversial  Many of the works had been seized from private owners during the Russian Revolution.  The sales continued until 1933.  There too, state-approved art was spotlighted (or its opposite criticised) in heavy-handed exhibitions that recall the Degenerate Art exhibit in Munich in 1937.

The final panel was in a roundtable format ,moderated by Susanne Kaufmann.  The most notable aspect of this was the participation of Dr. Ingeborg Berggreen-Merkel, chair of the Gurlitt Task Force.  Other participants were Willi Korte, Lucas Elmenhorst, Felicitas Heiman-Jellinek, and Frieder Hepp, Kurpfälzische Museum Heidelberg.  Dr. Ingeborg Bergreen-Merkel displayed a deep committment to the gravity of the issue, coming as it does in Germany proper.  In response to observations by Willi Korte (strongly critical of German Museums) on the one hand, and Lucas Elmenhorst about concern for privacy rights on the other, Dr. Bergreen-Merkel noted that they had framed the issue perfectly: how to balance the historical against the personal.  Hepp reminded everyone that purely legal or economic resolutions do not always adequately address the situation.  These are artworks that do what art does: place people’s experiences in context and give them meaning.
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